Sometimes alarming statements made at work justify a fitness examination. In the case of Barnum v. The Ohio State University Medical Center, 2016 App. LEXIS 2957 (6th Cir. 2016), the plaintiff worked as a Certified Registered Nurse Anesthetist. In 2011, she was having issues at home due to a divorce and other family matters. A co-employee advised her supervisor that Barnum said, “…maybe I’d be better off (if) I wasn’t here, maybe I should just put a gun to my head, maybe I should just not be here.”

An anesthesiologist at the hospital also became concerned about Barnum’s ability to concentrate on taking care of patients. A surgeon had to ask her twice to raise a patient’s operating table because Barnum was not paying attention. When the surgeon got her attention, Barnum said words to the effect that “I’m not worth anything or I’m worthless, what good does it do or what difference does it make, why should I even be here, maybe I should do everybody a favor and not be around.” For her part, Barnum denied ever having this specific conversation with this doctor, but she did admit to being unable to adjust the height of the operating table and becoming frustrated and tearful.

Several doctors at the hospital became concerned about possible suicidal risk, leading the hospital to place Barnum on sick time leave for one to two weeks in October 2011. The hospital requested a fitness-for-duty examination with a psychiatrist. Barnum was concerned about doing this in part because her husband worked as a case manager for the OSU mental health department and he might see the medical records. Eventually Barnum saw a psychiatrist, Dr. Masterson, on November 16, 2011. The hospital wanted to make sure that this psychiatrist spoke with one of the physicians from the hospital who was aware of some of the comments that had been made at work.

Dr. Masterson prepared her report, which Barnum delivered on February 22, 2012. In that report the doctor stated that Barnum was fit for duty and always had been. However, the doctor had not spoken with the key physicians at the hospital, so the hospital would not allow Barnum to return to work. Barnum filed a Charge of Discrimination with the Ohio Civil Rights Commission in April 2012 because she was not being permitted to return to work. Eventually, Barnum signed an authorization allowing Dr. Masterson to speak with two doctors at the hospital about her behavior and comments at work. On July 31, 2012 Barnum presented a second medical report from Dr. Masterson stating that the conversations with the doctors did not change her opinion: Barnum remained fit for duty.

On November 9, 2012, Barnum was reinstated to her position. She then sued for discrimination on the basis of disability. She argued that OSU violated the Americans with Disabilities Act by requiring her to undergo a medical examination that was not job related. The Sixth Circuit Court of Appeals disagreed:

An employer may request a medical examination when ‘there is significant evidence that could cause a reasonable person to inquire as to whether the employee is still capable of performing her job… The burden is on the defendants in this case to show that the required mental-health evaluations were ‘job-related and consistent with business necessity.’

The Court said that in this case there were numerous and legitimate concerns about whether Barnum could perform job tasks and concentrate at work. The hospital had been informed that Barnum had made a comment suggesting suicidal thoughts. “These circumstances constitute significant evidence that would cause a reasonable person to inquire whether the employee is still capable of performing her job.” The Court therefore dismissed plaintiff’s lawsuit.

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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